... Роби велике, не обіцяй великого (Піфагор) ...

Головне меню

Міжнародна науково-практична конференція 29.04.20 - СЕКЦІЯ №5
If you summarize all the scientific approaches that are involved in clarifying the content of the international legal acts in the field of the serving sentences, then it should be noted that most of them lead to the international standards of a general nature. In particular, such a general international legal act as the General Declaration of human rights states the following:
1. Every human has the right to life, liberty and personal safety (the article 3 of the Declaration) [2, p. 13].
In turn, in the art. 3 of the Constitution of Ukraine this provision has been expanded and has the following content: the human, his life and health, the honor and the dignity, the safety and the security are determined in Ukraine by the highest social value [288].
Moreover, the art. 27 of the Basic law states that everyone has an inalienable right to the life, the art. 28 – the provision about that no one can be tortured, inhuman or degrading treated or punished, and in the art. 29 – the requirement that every human has the right to liberty and the personal safety [3].
In unison (from Latin. unus – one sound) [1, p. 601] with this, in the art. 7 «The Basis of the legal status of the convicts’ of the CEC of Ukraine it is stated that convicts enjoy all the human and civil rights that are enshrined in the Constitution of Ukraine, except for the restrictions that are set out in this Code, the laws of Ukraine and those are established by the judgment of the court.
In addition, in the art. 10 «The right of convicts for the personal safety» of the CEC the procedure of actions of the administration of the PEI in case of the inception of danger to the life and health of convicts that are serving sentences in the way of deprivation of liberty was determined.
At the same time, neither in the specified norms of this Code, nor in its entirety in the chapter «The Legal status», is not maintained that the restraint measures, which are applied to convicts that are deprived of liberty, also refer to measures of the provision the right of these persons for personal safety.
Given the specified and the provisions of the art. 3 of the Declaration, the art. 10 of the CEC of Ukraine should be supplemented with the part 6 with the following content:
«In the defined by law cases of the provision the right of convicts for the personal safety is applied by the way of the application of the measures of physical influence, special means and weapon to offenders».
Such an approach would organically combine the norms of the General and Special part of the CEC, that are governing the above issues and would realize at the normative level the principle of systematic construction of legal norms, even in cases of their codification [7, p. 200-201].
Moreover, in the current case, the proposed changes to the art. 10 of the CEC fully reflect the content of the part 1 of the art. 106 of this Code, according to which the measures of physical influence, special means and weapon to the convicts that are deprived of liberty to prevent harming the environment by these persons.
2. Nobody must not be subjected to torture or to cruel, inhuman or degrading treatment and punishment (the art. 5 of the Declaration) [2].
A similar provision was reflected in the art. 28 of the Constitution of Ukraine, the Convention against torture and another cruel, inhuman or degrading treatment and punishment, which has been ratified by Ukraine and which, in accordance with the requirements of the art. 9 of «The Basic law», became part of the national legislation of the our country, and also - in the part 3 of the art. 50 of the CrC and in the part 1 of the art. 1 of the CEC of Ukraine.
However, it should be noted that in the art. 106 of the CEC nothing is noticed in this regard, although the restraint measures that determined by law to convicts prisoners have objectively inherently certain physical, mental and other consequences for their application.
Based on this, and taking into account the provisions of the art. 5 of the Declaration logically would be that the art. 106 of the CPC should be supplemented with the part 7 of the following content:
«The application of measures of physical influence, special means and weapon is not intended to cause the physical suffering or the humiliation human dignity».
As E. Svanidze rightly noticed in this regard, absolute prohibition of torture and inhuman or degrading treatment in all likelihood require the fight against impunity where such a prohibition is violated [6, p. 6].
The same conclusion was reached by D. Mardokh, who reasonably believes that the right to freedom from torture and to cruel, inhuman or degrading treatment and punishment is the imperative norm of the international law [4, p. 5].
Considering that one of the goals of the criminal executive legislation of Ukraine, which is enshrined in the part 1 of the art 1 of the CEC, is the prevention of the torture and inhuman or degrading treatment with convicts, the supplement to the art. 106 of this Code with the proposed provision is a reasonable and necessary measure, which, as in the previous cause, is objectively conditioned by the requirements of the General part of the CEC.
3. In the execution their rights and freedoms, every human should only be subject to such restrictions that are prescribed by law solely for the purpose of the provision of the proper recognition and of the respect, the rights and the freedoms of others and the provision of the just requirements of the morality, the public order and the general well-being in a democratic society (the part 2 of the article 29 of the Declaration) [2].
In the Constitution of Ukraine, the specified provision is reflected in several norms, namely:
a) the article 23, which states that every human has the right to the free development of his or her personality, without violating the right and the freedom of others, and has the duties to a society that ensures the free and full development of his personality;
b) the part 3 of the art. 63, in which it is stated that the convict enjoys all the rights of the human and citizen, except for the limitations that are specified by law and established by a verdict of the court;
c) the article 68, in which the provision that everyone is obliged to strictly abide by the Constitution of Ukraine and the laws of Ukraine, not to infringe on the rights and the freedoms, the honor and the dignity of others is enshrined.
Considering the provisions of the General Declaration of the rights of human and of the Constitution of Ukraine, the part 1 of the art. 106 of the CEC of Ukraine should be supplemented by the by the sentence with the following content:
The application of the specified in the law restraint measures is a right of the persons from the number of the personnel of the colonies, even in the causes of the receiving orders from the side of their management regarding the execution of such actions.
With this approach, it seems that not only the number of the applications to convicts that deprived of liberty, of the measures of physical influence, special means and weapon will decrease, but the principle of the rational application of coercive measures and the stimulus of the law-abiding behavior will also be implemented more substantially and effectively on the practice.
As I.S. Mykhalko rightly noticed in this regard, the peculiarity of the current principle is, first of all, in the fact that the subject of its regulation are:
– firstly, the various emergent extreme forms of the deviant behavior of the convicts, the most conflicting, deviating from the norm of relations;
– secondly, the law-abiding behavior that deserves stimulation, where the methods, the measures of the influence, the remedies and the re-socialization of the convicts are mainly indicated and united in the content of the principle [5, p. 285].
It is for these reasons and in the order of the prevention of unlawful application to persons, serving the sentences in the educational and correctional colonies, of the specified in the law measures of the restraint nature, and so, the realization on the property level such an element of an order of the criminal executive legislation of Ukraine as the prevention of the torture and inhuman or degrading treatment with convicts, and the proposed above modification of the part of the art. 106 of the CEC of Ukraine.
So, if to summarize the results of comparing the content of the General Declaration of the rights of human and the norms of the criminal executive legislation of Ukraine, which concerns legal grounds of the application to convicts in the places of deprivation of liberty, of the restraint measures (the places of isolation – on the international legislation), then it should be noted that the latter do not conform to the specified general international normative legal act, which necessitated the development, within the framework of the current study, of appropriate science-based measures regarding the improvement, in particular, of the norms of the current CEC of Ukraine.

References:
1. Buliko A.N. Bolshoj slovar ynostrannih slov. 35 tisyach slov. Yzd. 3-e, yspr., pererab. Moskva: Martyn, 2010. 704 s.
2. Zagalna deklaraciya prav lyudyny. Zbirnyk mizhnarodno-pravovykh aktiv ta ugod z pytan diyalnosti penitenciarnykh ustanov i povodzhennya z v’yaznyamy. Kyyiv: Vyd-vo «ANNA-T», 2008. S. 13—17.
  3. Konstytuciya Ukrayiny : chynne zakonodavstvo stanom na 16 sichnya 2019 r.: Oficz. tekst. Kyyiv: Alerta, 2019. 81 s. 
4. Mardokh D. Borotba z zhorstokym povodzhennyam i bezkarnistyu ta efektyvne rozsliduvannya zhorstokogo povodzhennya. Dopovid po Ukrayini. Kyyiv: «K.I.S.», 2010. 108 s.
5. Mykhalko I.S. Galuzevyj pryncyp racionalnogo zastosuvannya prymusovykh zakhodiv i stymulyuvannya pravoslukhnyanosti povedinky zasudzhenykh yak pidgruntya efektyvnosti diyi osnovnykh zasobiv vypravlennya i resocializaciya zasudzhenykh. Zasoby vypravlennya i resocializaciyi zasudzhenykh do pozbavlennya voli: monografiya / za zag. red. d. yu. n., prof.  Stepanyuka A.H. Kherson: Krossroud, 2011. S. 275—298.
6. Svanydze Э. Эffektyvnie rassledovanyya zhestokogo obrashhenyya. Rukovodyashhye pryncypi po prymenenyyu evropejskykh standartov. Kyev: Yzd-vo TOV «VPK «Ekspress-polygraf», 2011. 150 s.
7. Teoriya derzhavy i prava: pidruchnyk dlya stud. yuryd. vyshh. navch. zakl. / O.V. Pogrebnyak, V.S. Smorodynskyj ta in.; za red. O.V. Petryshyna. Kharkiv: Pravo, 2014. 368 s. 
 
 

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